E 
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53 



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O R A T I f ) N^ 



DELIVERED I; E F O I! E THE 



MUNICIPAL AUTHORITIES 



OF THE CITY OF BOSTON, 



JUI.Y t, 18.i;t, 



/ 



/ 



BY GEOPvUE SUMNER 



THIRD EDITION. 



BOSTON- 

JI DCCO T.IX. 




Glass. 
Book. 



J3 74 



1 ^ 5 ^ -B' 



ORATION. 



AN 



O E A T I O I^ 



11 K L I V K H K T) B E F (-) UK Till 



MUNICIPAL AUTHORITIES 



OF THE CITY OF BOSTON, 



JUIiY 4, issy, 



l^' 



BY GEORGE SUMNER, isn. /s>^^ 
It ' 



THIRD EDITION. 




" '^ OF WASH'.*' ,^^ 



BOSTON: 

M DCCC LIX. 



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Geo. C. Rand & Avery, Printers, 3 Cornhill, Boston. 



CITY OF BOSTON. 



In Common Council, July 21, 1859. 
Ordered : That the thanks of the City Council be, and they hereby 
are presented to Gteorge Sumner, Esq., for the eloquent Oration 
by him delivered before the Municipal Authorities on the occasion 
of the Celebration of the Eighty-Third Anniversary of the Declar- 
ation of American Independence, and that a copy of said Oration be 
requested for publication. 
Sent up for concurrence. 

J. P. BEADLEE, President. 

In Board of Aldermen, July 25, 1859. 
Passed in concurrence. 

SILAS PEIRCE, Chairman. 

Approved, July 27, 1859. 

F. W. LINCOLN, Jr., Mayor. 



PREFACE. 



Honored by the request of the City Council to speak, in 
the name of Boston, on the Fourth of July, it seemed to 
me proper on that occasion to discuss some of our obliga- 
tions, as Americans, to other nations and to ourselves. 

The facts then stated, which bear upon the aid given 
our country in its Revolutionary struggle, were verified by 
the examination of original documents in the archives of 
the State Department at Washington, of the French Minis- 
try of Foreign Affairs at Paris, and of the Spanish govern- 
ment at Seville and Madrid ; and also of papers in the 
hands of the executor of Caron de Beaumarchais, the 
agent of the first benefactions of France.* 

In giving to Spain the credit of having projected the 
Armed Neutrality of 1780, I am aware that I may seem 
to have differed from many writers on International Law. 
The statement, however, was not lightly made, nor without 
documentary evidence to sustain it. 

* As the ree-ent biographer of Beaumarchais, M. de Lomenie, has charged 
the United States with ingratitude to him, I take this opportunity publicly 
to state, that having drawn the attention of his executor to the first ac- 
cusations of M. de Lomenie, in the Revue de.<t Deux Mamies, that gentleman 
declared to me, that every just claim of Beaumarchias had been " fully, 
largely, and generously paid by the United States ; " and this declaration he 
ortered to repeat, in his official capacity, before a Notary Public. 



Of what was said concerning the position of European 
countries, I have nothing to alter on account of the truce 
of Villafranca. 

As regards recent events in our own country, speaking in 
the name of a law-abiding people, I felt it my duty to raise a 
warning voice against conduct which the wisest jurists in the 
land have denounced, as tending to bring the tribunals of the 
law into disrespect. Speaking in the name of those whose 
ancestors made sacrifices to secure liberty founded on law — 
and who believe an essential guaranty of that liberty to con- 
sist Jn the separation of the legislative, executive and judicial 
functions — I should have been recreant to my trust did I fail 
to speak of acts which tended, if not to confound those func- 
tions, at least to destroy their harmonious balance. Venera- 
ting the Constitution, I could not stand dumb in presence of the 
earnest appeal of the Senior Judge of the Supreme Court — 
the companion upon the bench of Marshall — Mr. Justice 
McLean, who, alarmed at the usurpations of the Chief 
Justice, and other of his junior colleagues, exclaimed in the 
Dred Scott case : " Have the impressive lessons of practical 
wisdom become lost to the present generation ? If the great 
and fundamental principles of our Government are never to be 
settled, there can be no lasting prosperity. The Constitution 
will become a floating waif on the billows of popular excite- 
ment." Yielding to no one in respect for our judicial sys- 
tem — and keenly alive to the importance of that respect being 
universal — I felt it my duty to invoke the supreme tribunal of 
the land — the Sovereign Public Opinion of the country — to 
aid in awakening a portion of the Judiciary to a sense 
of self-respect — the basis of respect from others. 



Jefferson in a letter to Edward Livingston, of 25th 
March, 1825, says: "Your code for Louisiana will range 
your name with the sages of antiquity. One single object 
will entitle you to the endless gratitude of society ; that of 
restraining judges from usurping legislation. . . . Expe- 
rience has proved that impeachment in our forms is com- 
pletely inefficient. A regard for reputation and the judgment 
of the world, may sometimes be felt where conscience is 
dormant, or indolence inexcitable." 

Story also recognized as the High Court of Appeals of 
our country, " its intelligence, its integrity, its learning 
and its manliness." 

In addressing myself to these, I followed my convictions 
of duty ; being true to which I felt that I was true to Bos- 
ton. — I was happy moreover in the certainty that even so 
humble a voice as my own, when speaking for the purity and 
dignity of the Judiciary, had the cordial support of the 
members of every " healthy political organization " in the 
Republic. Gr- S. 

Boston, 1st August, 1859. 



ORATION. 



Eighty-three years have passed since the delegates 
of thirteen feeble colonies proclaimed the immortal 
truths of that Declaration to which we have just 
listened. This act, pregnant with consequences to 
all mankind, stands in history as the record of the 
birth of a new nation. 

In 1776 the great powers of Europe were at 
peace, and England was at full liberty to throw on 
our shores the whole force of her arms. 

In the great contest which ensued — a contest for 
self-government and for the equal rights of man — 
perils were encountered and sufferings endured, which 
we, calmly enjoying their fruits, remember with grati- 
tude to the men who toiled for us, and with fealty 
to the principles which they proclaimed. 

The struggle was long and unequal ; and when 
the enemy succeeded in gaining possession of New 
York, the timid began to falter. All eyes were now 
turned to Europe. Delegates had been already de- 
spatched to seek the assistance of France, and their 
hopes were not disappointed. One million of francs 



12 



were given from the French treasury ; cannon and 
mihtary stores furnished from the arsenals of France ; 
other stores to the vakie of a milhon of dollars 
placed in colonial ports accessible to our vessels ; 
and a series of friendly acts commenced which, on 
the 6th of February, 1778, were consummated in a 
treaty of alliance, and in a declaration by which 
France bound herself to make no peace with Eng- 
land until the independence of the United States 
was fully recognized. 

But it was not France alone which came to our 
aid. During that summer of '76, one of those brave 
men who were the creators of the naval glory of 
our country, Captain John Lee, of Marblehead, cruis- 
ing under a commission from Congress, having taken 
and sent home five valuable prizes, and finding it 
necessary to refit and obtain supplies and munitions 
of war, entered the port of Bilbao in Spain. The 
captains of two of his prizes and a part of their 
crews were on board. These officers immediately 
protested against their capture, and had CajDt. Lee 
arrested on a charge of piracy. The local author- 
ities sent the documents of the case to Madrid, 
together with the commission granted by this new 
and unknown power. Here was a critical juncture 
in our affairs. On the decision of the Spanish Min- 
istry depended, not alone the fate of Capt. Lee, but 
whether some of the most important ports in Europe 



should be opened or closed to our cruisers and pri- 
vateers. The English Minister in Spain brought all 
his influence to bear against us. At this moment 
the Declaration of the Fourth of July reached Madrid. 
The complaint against Capt. Lee was dismissed ; sup- 
plies for his ship, and aid in repairing it were fur- 
nished ; and public declaration made that in Spanish 
ports the new flag of America was as free and as 
welcome as was the old and haughty flag of England.* 

This open act of friendship had been preceded by 
another. On the 27th June, 1776, the Spanish Min- 
ister of Foreign Affairs sent to Count Aranda, Am- 
bassador of Spain, in Paris, one million francs, as a 
free gift for the American Colonies jf and on the 
11th August this million was paid over to the agent, 
with whom Silas Deane and Arthur Lee, as delegates 
of Congress, were in treaty for the shipment of arms 
and supplies. 

But this was not all. Cargoes of military stores 
were sent to us from Bilbao ; then the hint was 



* Cooper, in his Naval History of the United States, seems entirely to 
have overlooked this interesting episode. Captain Lee was a brother of 
Colonel William Lee, for many years Collector of Salem, the same to 
whom Washington proposed the place of Adjutant General of the Rev- 
olutionary Army, before offering it to Colonel Timothy Pickering. Silas 
Deane, in his despatch of 17th October, 1776, to the Committee of Secret 
Correspondence of Congress, erroneously describes Captain Lee as of New- 
buryport. — See Diplomatic Correspondence of the Revolution ; vol. I., p. 53. 

f I have seen the despatch of the Marquis of Grimaldi to Count Aranda, 
enclosing this draft for a million francs. 



14 



given that three thousand barrels of powder stored 
at New Orleans were at our service;''' the port of 
Havana was opened to us on the same terms as to 

*The despatches of Oliver Pollock, the agent of Congress at New 
Orleans during the war, which are in the archives of the Department 
of State at Washington, throw the fullest light upon what was done by 
the Spanish Government in Louisiana. 

As early as August, 17 76, a cargo of powder was given by Governor 
Unzaga, despatched by Pollock, and arrived in safety. In January, 
1777, Don Bernardo de Galvez succeeded Unzaga as governor. "That 
worthy nobleman," writes Pollock, "immediately made a tender of 
his services, and gave me the delightful assurance that he would go 
every possible length for the interest of Congress. I should be guilty of 
injustice, did I not declare that this generous pi'omise was honorably ful- 
filled ; and I should belie my own heart if I did not on this, as on every 
other proper occasion, express my grateful sense of the services he has 
rendered to the United States. The first instance of them was retaliating 
the seizure of an American schooner in the lakes, by the seizure and con- 
fiscation of all British vessels between the Balize and Manchac, 

and by an assurance that the port of New Orleans should be open and free 
to American commerce, and to the admission and sale of prizes made by 
their cruisers." 

Pollock not only sent military stores presented to Congress by the 
Spanish governor, but also made purchases of supplies amounting to 
$65,814, for the State of Virginia, and sent them bj' batteaux to different 
points on the Ohio. His drafts, authorized by Governor Patrick Henry, 
came back protested, placing him in the greatest embarrassment, from which 
he was generously relieved by Don Bernardo de Ottero, the Spanish Treas- 
urer of Louisiana. 

The course of events at New Orleans, under the brilliant young gov- 
ernor, Bernardo de Galvez, whose name a city of the United States now 
bears, is described in papers in the ArcMvias de las Indias, and has more 
than the interest of romance. A somewhat tardy recognition of his aid 
to us is found in a despatch written by order of Congress on the 21st 
November, 1781. This despatch, signed by Robert Morris, addivssed to 
General Don Bernardo de Galvez, says : 

" I am directed by the United States to express to your Excellency the 
grateful sense they entertain of your early efforts in their favor. Those 
generous efforts gave them so favorable an impression of your character and 
that of your nation, that they hive not ceased to wish for an intimate con- 
nexion with your country." 



15 



France, and the further hint given that if an Amer- 
ican ship should look in there occasionally it would 
find the door of a certain magazine open, and some- 
thing in it useful to the Colonies. 

Nor was this the end of Spanish favors. Blankets 
for ten regiments were sent as a present to Congress, 
through John Langdon, of Portsmouth ; ship loads 
of stores were despatched through the house of Gardo- 
qui, at Bilbao ; and when John Jay appeared at 
Madrid as Minister of the new States, without any 
provision being made by Congress for money to pay 
even his house rent, another gift of $150,000 was 
made to him for us. 

More yet. Though the declaration in regard to Capt. 
Lee was the earliest act of recognition by any power 
except France, Spain abstained from making a treaty 
with our Minister, for the very excellent reason that 
to do so would have been tantamount to a declara- 
tion of war against England, for which she was not 
prepared. But that eminent man who, on the 19th 
February, 1777, took the reins of power in Spain, 
Florida Blanca, was not idle. He immediately com- 
menced building new ships and arming those already 
built — the annual expenses of the navy, usually 
about one hundred million reals, or five million 
dollars, were suddenly raised to twenty million dol- 
lars — and, in the spring of 79, thirty-six ships of 
the line, mounting more guns than any fleet she 



16 



ever had, being ready for sea, she declared war 
against England. This immense fleet, of which seven 
were three-deckers, of 100 to 120 guns, (our solitary 
three-decker, the Pennsylvania, has never yet got to 
sea), this immense fleet joined the French fleet, 
sailed to attack the common enemy, and during that 
and the succeeding year intercepted the troops and 
supplies which had been sent to aid in our conquest. 

Florida Blanca did not stop here, but, while en- 
gaged in his naval preparations, made a treaty with 
the Emperor of Morocco which closed his ports to 
the English. He also opened relations with Hyder 
Ali in India, and fomented the war which that pow- 
erful prince maintained against England. Benjamin 
Rush, writing shortly after to General Gates, says, 
"Heaven prosper our allies! Hyder Ali is the stand- 
ing toast at my table." Florida Blanca did not rest 
content with this, but used all the wiles of diplo- 
macy and all the force of Spain, to make difficulties 
for England in every part of the globe. When we 
are disposed to stretch the hand of covetousness 
toward any possession of now weakened Spain, let us 
remember the helping hand she gave to us in our 
hour of suffering and of peril. 

But the labors of Spain did not end with this. 
England, driven to desperation, used all her arts to 
draw the northern powers into her alliance, and 
with Russia succeeded so well that orders were issued 



17 



to fit out fifteen ships of the line at Cronstadt, and 
the intimation was given by the Empress Catharine 
to Sir James Harris, afterwards Lord Malmesbury, 
that this fleet would soon be ready to aid England 
in her contest/^ British Ministers announced the joy- 
ful fact, and one of their journals, even before the 
ice was open in the Baltic, declared that the Russian 
fleet had already arrived at Plymouth. 

In one week all this was changed; and there sud- 
denly appeared in the spring of 1780, the important 
declaration of Russia that led to the armed neu- 
trality, which has been called by writers on inter- 

* On the 5th Nov., 1779, Geoi-ge HI. wrote to the Empress Catharine: 
" The lively interest which you take in all that concerns Great Britain de- 
mands my thanks. In this, as on so many other occasions, I have admired 
the greatness of your talents, the extent of your knowledge, and the no- 
bility of your sentiments. . . . The designs of my enemies will not 
escajie your penetration. . . . The use, or the simple show, of a part 
of your naval force, would restore and assure the repose of all Europe by 
dissipating the league which is formed against me." 

On the 11th January, 1780, "another sop," (to use the language of the 
third Earl Malmesbury, in vol. I., p. 2G9, of his grandfather's writings,) " was 
given to the empress." On the 19th January, Sir James Harris handed to 
Prince Potemkin a memoir, written to show that, should the allies prevail 
against England, America would supply France with hemp, pitch, timber, 
&c., to the detriment of Russian trade. 

"On the 22d February, 1780," says Harris, " Pjince Potemkin sent for 
me, and with an impetuous joy, said, ' I heartily congratulate you ; orders will 
be given to arm fifteen ships of the line and five frigates ; they are to put 
to sea early in the spring. . . . It is entirely owing to what you have 
advanced. . . . Your nation may consider themselves as having 
twenty ships added to their fleet. . . . [ am just come from the em- 
press ; it is by her particular orders I tell it to you.' He ended by desiring 
me to despatch my messenger immediately, expressing his impatience for 
this event being known in London." — Malmesbury ; Diaries and Corres- 
pondence, I., 279. 

3 



18 



national law, "the charter of the liberty of the 
seas." By this, the empress declared that her fleet 
was fitted out, not to aid England, but to maintain 
the principles, that free ships make free goods — 
that the neutral flag covers enemies' property — and 
that no blockade which was not maintained by an 
effective force, no blockade made merely by the 
London Gazette, would be recognized as valid. 

John Adams, then Minister at the Hague, saw at 
once the whole force of this step, and, in a despatch 
to Congress, said: "A declaration of war against Eng- 
land, on the part of Russia, could not have been 
more decisive," — and again, "the pretended preem- 
inence of the British flag is now destroyed." "Rus- 
sia now will never take part with England, and all 
the maritime powers must either remain neutral or 
join against her." 

In the House of Lords a wail of despair was 
set up. "I shudder," said the Earl of Shelburne, 
"when I think of this Russian manifesto; by it the 
independence of America is consummated;"-'' and 

*"The doctrine," said Earl Shelburne, " of ' free ships, free goods' at 
once destroyed the law of nations as it had remained for many centuries ; 
but that was not all; it must terminate in the ruin of Britain, at least in the 
overthrow of her naval power. ... If Franee and Spain could trans- 
port their property to and from the western world in free because neutral 
bottoms, it was to the last degree ridiculous to say or believe that Great 
Britain could possibly be able to cope with the united force of the House of 
Bourbon. . . . Then farewell for ever to the naval power and glory of 
Great Britain!" — ParUamentary History, XXI., (i29 et seq. 



19 



Lord Camden declared that ''the queen of the seas 
was deposed, and her sceptre fallen!" 

Desperate efforts were made by British Ministers 
to meet the emergency. Appeals were addressed 
to Denmark and Sweden, but without effect; and, 
during this year, 1780, Sweden, Denmark and Hol- 
land joined in the league with Russia, which was 
in its effects a league of hostility to England. Hol- 
land also soon joined in the war; so that on one 
side stood England unaided and alone, — on the other, 
using all their forces against her, the United States, 
France, Spain, Hyder Ali, Holland ; while all the 
northern powers were armed, nominally neutral, but 
really hostile to her autocratic pretensions. 

One of our wisest statesmen, John Adams, ex- 
claimed a few years later: "We owe the blessings 
of peace not to the causes assigned, but to the armed 
neutrality." And who was the real author of the 
armed neutrality? Who conceived that act, and who, 
by his ingenuity and indefatigable perseverance, led 
Russia and with her the northern powers to adopt 
it? — Florida Blanca, the Minister of Spain. And to 
him and to his country, I here render the honor, 
with all the more pleasure that this has not usually 
been done, and that the documents which establish 
their claim to it are in my possession. 

For such aid as the armed neutrality gave us — 
again we have to thank Spain. 



20 



With all this inequality of force the war still 
went on. Constant efforts were made by England 
to induce the Colonies to return to their allegiance; 
and, to their shame be it said, men were found ready 
to listen to her propositions ; men who seduced by 
the hope of rewards, and by the promise of office 
for themselves or for their sons, consented to sneer 
at and to deny the princijDles of the Declaration. It 
was after intercourse with such men, that the intelli- 
gent agent of one of our allies wrote home to his 
government that there was more real enthusiasm for 
American liberty in the smallest cafi in Paris, than 
in a large portion of the society which he met. 

Again and again were terms offered by England 
to Spain and to France, but the constant reply was, 
a refusal to treat until we were free. 

Peace and freedom were at length secured; and 
from that time, through various vicissitudes and diffi- 
culties, our country, — by confidence in democratic 
principles, by faith in the people, and by the spirit 
of mutual forbearance and charity among them, — has 
gone on prospering and increasing, till in material 
force it stands among the mightiest; and, did we 
but always act up to the immortal truths of the 
Declaration, would, in moral force, be the mightiest 
of the earth. 



21 



While the old world, to which we turned for suc- 
cor against our unnatural parent, is echoing to the 
clang of arms, and hostile legions stand arrayed for 
combat, 

" We may live securely in our towns ; 

We may sit 
Under our vines and make the miseries 
Of other nations a discourse for us, 
And lend them sorrows; — for ourselves, we may 
Safely forget there are such things as tears." 

But it is not in man to be indifferent. The en- 
during sympathies of our nature demand an object; 
and besides, our early ties to France must make us 
feel a special interest in her actions and destiny. 
What, then, is the object of the war in which she is 
engaged, and what responsibility have we in the con- 
test? 

The actual war between Italy and France on one 
side, and Austria on the other, is but the continua- 
tion of our own struggle on another field — the strug- 
gle for independence, equal rights and self-govern- 
ment. How far these may be secured by the present 
contest is very uncertain ; but there is no uncertainty 
in this, that our warmest sympathies are due to all 
who strive for them. 

In the present case these sympathies are augmented 
by a remembrance of all we owe to Italy — that 
beautiful country which the Apennines divide, the 



22 



Alps and sea surround — Italy, which has given us 
so much of all that adorns and elevates life ; the 
home of art, of science, of medical skill, of political 
knowledge; of Galileo, Raflfael, Michael Angelo, of 
Fallopio and of Volta; the land which in modern 
times has given us the earliest epic poet, Dante ; 
the great lyric poets, Petrarch and Filicaia; the 
earliest novelist, Boccacio ; the first philosophical his- 
torian, Machiavelli ; and the founder of the philosophy 
of history, Vico, whose great mind has brought to 
the development of political science and the laws of 
the moral world the same precision that Galileo had 
brought to those of the material world. 

To Italy we owe the mariner's compass, the bar- 
ometer, book-keeping, the telescope applied to astron- 
omy, the calculation of longitudes, the pendulum as 
a measure of time, the laws of hydraulics, the rules 
of navigation : and to Italy we owe both Columbus, 
who discovered, and Amerigo Vespucci, who gave 
his name to our country. 

To Italy we owe also some of the most important 
lessons of political philosophy. Her Republics of the 
middle ages were based on the three great principles : 

1st. That all authority over the people emanates 
from the people. 

2d. That power should return at stated intervals 
to the people. 



23 



3d. That the holder of power should be strictly re- 
sponsible to the people for its use.''' 

To those Republics we also owe the practical de- 
monstration of the great truth, that no State can 
long prosper or exist where intelligent labor is not 
held in honor, and that labor cannot be honorable 
where it is not free. 

Our sympathies are augmented by a remembrance 
of all this, and by the natural horror inspired by 
Austria — to whom civilization for three hundred and 
thirty years owes nothing, — whose whole career, both 
at home and abroad, has been a series of blackest 
crimes against the political rights of States, and the 
individual rights of man, — and who is now under the 
despotic control of an emperor, himself a deplorable 
example of the union of youth and cruelty. 

But there are some, happily their number is small, 
who, having no faith in the people, look with indiffer- 
ence upon their efforts, — and others who try to cloak 
the selfishness and imbecility with which nature has 
endowed them, under an assumed superiority over 
the people of other countries, — who tell us that 

"*"The whole system of Italian liberty is represented in these three 
axioms. In fact, the Italian republics were fi-eer than those of Germany, 
than the imperial and Hanseati? cities, than the Swiss Cantons, than the 
United Provinces, perhaps even than the republics of antiquity. All these 
had sought, not the security, but the sovereignty of the citizens ; not to pro- 
tect the citizen against the government, but to create a government to the 
power of which, with a blind and unlimited confidence, they neglected to 
fix any bounds." ^ — Sismondi, Hisloire des Republique.^ Italiennex, XVI., .394. 



24 



other nations are not fitted for free institutions, — who 
seem to think that they have a patent for freedom, 
and an exclusive right to enjoy it, — that they are 
God's chosen people, and that all others are made 
only to be ruled by tyrants. 

Others, again, who have a sense of natural right, 
and common sense besides, but whose natures are not 
hopeful, point to the example of France, and in her 
failures to maintain a stable republican government, 
find, as they imagine, the justification of all their 
misgivings. As the events now passing in Italy must 
produce a recoil in France, and as the power of self- 
government in Italians will by some be judged of by 
that exhibited by the French, it may be well to look 
for a moment at this. 

It is only stating what many wise French writers 
have admitted, that their Revolution of 1789 was 
brought on by our own. Before '76, the labors of 
Fenelon, Montesquieu, Turgot, and other French phi- 
losophers, had developed ideas upon the rights of man, 
and the science of government, which, to this day, 
stand as the landmarks of an advancing civilization. 
They had all asserted the natural rights of man, and 
all recognized that nations had rights flowing directly 
from these, and not drawn from old charters or from 
musty parchments. With this there was, on their 
part, a large and generous apjjreciation of the rela- 



tions which should subsist between different coun- 
tries. 

Montesquieu had laid down the proposition, for 
which he is sharply attacked by Lord Brougham, that 
"the whole system of international law is a set of ob- 
vious corollaries to a maxim in ethics — that in war 
nations should do as little injury, and in peace as 
much good to each other, as is consistent with their 
individual safety." 

Turgot, the great statesman, whose Latin inscription 
for a memorial of Franklin'^ has been adopted by the 
city of Boston — and who may be called the father 
of free-trade — Turgot had labored for three great 
objects : 

1st. To check religious intolerance. 

2d. To reduce, and finally suppress, standing armies. 

3d. To establish free trade. 
And the whole political code of this hard-headed, 
practical statesman and successful financier, may be 
summed up in his declaration that " when called upon 
to decide if any measure were useful for France, the 

* Turgot's fii'st inscription was in French verse : 

Le voila ce mortal dont I'heureuse industrie, 
Sut enohainer la Foudre et lui donner des loix, 
Dont la sagesse active et I'eloquente voix, 
D'un pouvoir oppresseur affranchit sa Patrie, 
Qui desarma les Dieux, qui reprime les Rois. 
Which, subsequently, he condensed into this admirable line : 
Eripuit Coelo fulmen, sceptrumque Tvrannis. 

Oeiwres de Turgot, IX., 140. 
4 



26 



question must first be asked, Is it useful for all man- 
kind? for whatever temporary advantage may appear 
to accrue from acting on a different principle, noth- 
ing in the long run can be good for one nation which 
is not good for all." 

These philosophers turned their eyes toward Eng- 
land, as then offering the only example in the 
world of a certain degree of liberty; this they rec- 
ognized in the independence of her judiciary and 
in the grand princi^Dles — fortunately our heritage — 
which guided it. The words of Algernon Sidney 
were familiar to them : " Common sense declares that 
governments are instituted, and judicatures erected, 
for the obtaining of justice. The king's bench was 
not established that the chief justice should have 
a great office, but that the oppressed should be re- 
lieved, and right done. The honor and profit he 
receives, come as the rewards of his service, if he 
rightly perform his duty." And again : " The power 
with which the judges are entrusted is but of a 
moderate extent, and to be executed bona fide. Pre- 
varications are capital, as they proved to Tresilian, 
Empson, Dudley, and many others." * 

No passage from Sidney was more frequently re- 
ferred to than this : " They who uphold the rightful 
power of a just magistracy, encourage virtue and 

* Sidney ; Discourses on Government, chap, iii, sec. 2G. 



27 



justice; teach men what they ought to do, suffer, 
or expect from others ; fix them upon principles of 
honesty ; and generally advance everything that tends 
tt) the increase of the valor, strength, greatness and 
happiness of the nation, creating a good union among 
them, and bringing every man to an exact under- 
standing of his own and the public rights. On the 
other side, he that would introduce an ill magis- 
trate, make one evil who was good, or preserve him 
in the exercise of injustice when he is corrupted, 
must always open the way for him by vitiating the 
people, corrupting their manners, destroying the val- 
idity of oaths and contracts, teaching such evasions, 
equivocations and frauds, as are inconsistent with the 
thoughts that become men of virtue and courage."* 
The declaration of Chief Justice Lee was also cited by 
them with admiration — " One rule can never vary in 
our courts, viz., the Eternal rule of Natural Justice.''^ 
Montesquieu had shown in his great work that 
the separation of powers, judicial, executive and legis- 
lative, was the basis of all free government ; and, 
acting upon this, much had been done, even before 
'89, to improve the administration of justice. 

* 7&if/, chap, iii, sec. 20 : III. 129. Edit. 1805. 

•(• These words of C. J. Lee will be found in the case of Oini/cJmnd v. 
Barker, Atkyns's Reports, I. 46. 



28 



The Constitution of '89 gave to France self-govern- 
ment, and recognized the sovereignty of the people. 
No honest man had anything to fear from this Con- 
stitution, but all who lived by opj)ression and wron^ 
were filled with dismay. The Christian doctrines of 
Turgot and Montesquieu, and the principle that gov- 
ernments were made for men, and not men for gov- 
ernments, shook the despotic thrones to their base. 
Their trembling occupants conspired at Mantua and 
Pilnitz, and formed a league to crush the constitutional 
government of France. 

In August, 1792. the armies of despotism arrived 
on the frontier, threatening to overturn that govern- 
ment, and, if opposed, to reduce Paris to ashes. Then, 
in the fear and frenzy which ensued, began those 
acts of violence which have left a stain upon the 
French Revolution. " Nothing," says one of the most 
conservative writers upon international policy, " can 
ever justify one State's interfering with the internal 
affairs of another; and the worst of mischiefs (the 
execution of those who have aided it) must ever be 
the result of such interference ; " and it is to this 
infamous and unprovoked attempt to interfere by 
arms with the internal affairs of France, that we 
must trace the death of Louis XVI., and all the 
violence and all the difficulties which followed it. 

France had done nothing to provoke interference ; 



29 



and, left to herself, might and probably would have 
organized and sustained a good government. This 
assertion I boldly make, conscious that it does not 
accord with what some of us have been taught. The 
enemies of liberty have not scrupled on every occa- 
sion to distort the truth, and have even on one occa- 
sion found an accidental ally in a President of the 
United States. 

Mr, Millard Fillmore, in the last annual message he 
sent to Congress, says that France showed a desire 
to force her form of government upon all the world, 
and points to a decree of her Convention, declaring 
she was ready to succor oppressed nations struggling 
for liberty, as the false step which brought against 
her the coalitions and armies of Europe. Had Mr. 
Fillmore but looked at the facts, he would have found 
that the provocation to hostilities came not from 
France, but from the despotic confederates ; and that 
the decree in question, at the same time that it 
showed a generous spirit, was also a measure of self- 
defence. The Convention of Mantua was signed 20th 
May, 1791 ; that of Pilnitz the 29th August, 1791 ; 
and it was not until the 19th November, 1792, after 
the actual invasion of France, and eighteen months 
after the first coalition against her, that the Con- 
vention voted the decree which President Fillmore 
leads us to infer was the cause of that invasion and 



30 



of that coalition; the cause, in presidential logic, 
coining eighteen months after the effect/'' 

But there are too many who speak of France, not 
with any accurate knowledge of facts, but with reck- 
less assertion, and a seemingly wilful blindness to truth 
and to principle. 

This is not the place for long dissertations, but a 
candid examination of facts will show that the French 
people have never yet had a fair chance. From 1792 
to 1830, the prolonged pressure upon France of des- 
potic Europe, under the lead for a long time of 
England, prevented her from forming a good govern- 
ment. The revolution of 1830 secured the rights of 
only 240,000 ; the thirty-six millions of Frenchmen 
being declared by Guizot to be no part of the " lawful 
country ."f The revolution of 1848 made of these 
outlaws citizens, and they marked their possession of 
power by securing to France three thousand new 
school houses — by giving her cheap postage — by 
making all bondmen in her colonies free — and by 
placing for two years her budget in equilibrium. Dur- 
ing the eighteen years of Louis Philippe's reign the 



* A statement of Lord Brougham has led many persons into this same 
historical error. " The famous decree of 19th Novembei", 1792, was a main 
cause of the dreadful war which so long laid Europe waste, and overthrew 
so many established governments." — Brougham VIII., 79. But the invasion 
of France took place some time before this decree. 

f " Je ne cnnnais rjuc le pays legal.'' Guizot — Speech in the Chamber of 
Deputies. 



31 



expenses had been every year fifty million dollars 
more than the receipts, while under Louis Napoleon 
the annual deficit has been upwards of one hundred 
million dollars. To the Republican government of 
1848 belongs the exclusive honor of having, for two 
years, kept its cash account square. 

This government fell, through the perjury of an 
usurper, and through the passive obedience of a stand- 
ing army — an army which despotic coalitions had 
taught France to regard as necessary for her safety. 

Before we revile the French people for having per- 
mitted this usurpation, let us remember that it was 
not accomplished without a bloody resistance, and 
that the people in the provinces showed the spirit of 
self-government which was in them, by refusing for 
a long time to submit to the dictation of the capital. 

Let us remember also that our own Congress, sit- 
ting in Philadelphia, was in 1783 assailed by armed 
invaders of its Hall, and took refuge in another city. 

Let us again remember that on this very day, three 
years ago, an assembly of the people in a territory of 
the United States, peacefully discussing the formation 
of their institutions, was dispersed by the bayonets 
of the Federal army. 

One of the most acute and learned of living Ameri- 
can publicists — worthy son of worthy sires — Mr. 
Charles Francis Adams, in the admirable notes to the 
writings of his grandfather, suggests the single legis- 



lative assembly as one great cause of the want of 
stability of Republican forms in France ; and, in regard 
to the Italian Republics of the middle ages, he alludes 
to the absence of a respect for the rights of the 
minority as one of the latent causes of their down- 
fall. This same observation upon the minority has 
been applied by others to France. 

It may not, perhaj)S, be generally known that the 
adoption of a single chamber in France was due, in a 
great degree, to the labors of our own philosopher and 
statesman, Franklin. As President of the State Con- 
vention of Pennsylvania, he had secured the adoption 
in their constitution of a single chamber — in his 
writings he had praised it — and the Committee of 
the French National Assembly, La Rochefoucauld, 
Sieyes, Mirabeau and others, give to Franklin the 
honor of having aided them, as they say, " to clear 
the legislative machine of its multiplied movements 
and much praised balances, which made it only com- 
plicated and cumbersome ; " and this opinion of Frank- 
lin was also relied upon in the adoption of the Re- 
publican Constitution of 1848. While admitting the 
error in this, we may surely pardon something to 
those who have been led astray by faith in our own 
great men. 

In regard to the rights of minorities, every revolu- 
tion in France has shown an increasing respect for 
them on the part of the people ; and in the most 



33 



violent popular clubs of 1848, were heard words like 
these : " We ask no exclusive legislation for ourselves ; 
on the contrary, let us remember always to guard the 
rights of the minority ; as the law of civilized States 
throws its tutelary protection with special force over 
minors and wards, so let us, being in power, remember 
that the defeated minority are our wards, and that we 
are their responsible guardians." Compared with a 
sentiment of high and generous statesmanship like 
this, coming to us though it do from a " red-repub- 
lican " club in Paris, what an ignoble contrast is pre- 
sented by that cry of demagogues — that Indian war- 
whoop of party leaders — "to the victor belong the 
spoils." 

Under all recent governments in France, the spirit 
of inquiry in her people has remained ever active, 
and the character of her judiciary generally unspotted. 
The reply of President Seguier to an improper de- 
mand of power will be recalled : " The court renders 
judgments, not favors." Under the first Napoleon, some 
of the courts, it is true, degenerated ; but the Paris bar 
has punished, by remembering, the judge whose often 
repeated formula was : Vempereur a dit, et je vous le 
repete — " the emperor has said, and I repeat it " — 
and one of the declared reasons for the overthrow of 
Napoleon was, that, he had " confounded all powers, 
and destroyed the independence of the judiciary." ='• 

* See the Senalua Consultum of April, 1S14, Sec. VII. 



34 



Every change in France has shown a higher de- 
velopment, a larger education, and a greater power 
of self-government on the part of her people. It has 
taken England some six hundred years to bring her 
parliamentary machine into its actual state; and yet, 
only four years ago, the husband of Queen Victoria 
publicly stated, at the Trinity House dinner, that it 
must be regarded as still on trial. Let us not, then, 
question the capacity of the French, or the Italian, or 
the German people, simply because they may fail to 
achieve in six months what England has worked upon 
for six centuries. 

But, we are told that Italy will only change its 
master, and that France will take the place of Aus- 
tria. It is not the interest of Louis Napoleon to re- 
main in Italy, nor is it possible, under any circum- 
stances, for France to degrade herself to the level of 
Austria. 

The career of the elder Napoleon in Italy, which 
was such as to cauSB his name to be still revered 
there, may here be safely apjDcaled to. Industry was 
awakened and encouraged, schools founded, the sci- 
ences stimulated, and academies organized by him 
who had destroyed them in Paris. The courts were 
changed, and in place of a system which favored and 
even required servile and corrupt judges, one was 
installed which led to the impartial administration of 



35 



justice. The armies of France, under Napoleon, 
brought to Italy some of the fruits of the revolution 
of '89. If the worst predictions of the enemies of 
the war should be fulfilled, and Italy gain by it only 
a French master, it would still, judging by the past, 
be a change from darkness to light, from a govern- 
ment of the most loathsome brutality to one of 
comparative civilization. 

And here let me say, that if I seem to speak 
harshly of the Austrian domination in Italy, it is 
because, with my own eyes, I have seen its effects. 
I will not sadden this day by the recital of atroci- 
ties, the remembrance of which, even at this dis- 
tance, chills my blood. To me it seems incredible 
that any one can be found ready to defend the gov- 
ernment which practises them. 

Nor has Italy received anything from Austria in 
exchange for all her sufferings. The well-made roads, 
which are pointed out to the stranger, were nearly 
all the work of Italian engineers during the time of 
Napoleon ; but even if some material improvement 
had been made, it would be as nothing compared 
to the immense amounts Austria has drawn from 
Lombardy, by forced loans and by crushing taxation. 
About fifty per cent, of the revenue of land-owners 
goes to the Austrian treasury'; "and all we get in 
exchange," said a Lombard to me, " is, once a week, 
the music of aii Austrian reg-iment." 



36 



But give Italy a fair chance. Take from her the 
incubus of Austria. Take away those bayonets, with 
which, through a bUnd reverence on the part of 
other States, for existing abuses and the balance of 
power, Austria has been allowed to transpierce her. 
" Let the thief and the receiver, the murderer and 
the robber be no longer suffered to play the part of 
watchmen" in Europe, and no one can doubt the 
result for Italy. 

It does not follow that a perfectly balanced gov- 
ernment will leap at once into life. Difficulties of 
internal organization doubtless will arise. Mazzini 
will strive for a united, central republic, while others 
will be glad to ^^h^ce themselves under the constitu- 
tional system, which has developed statesmen like 
Cavour and Azeglio, to plan their wars and alliances, 
and brave captains like Victor Emanuel, to lead 
their armies. These differences of opinion will cre- 
ate discussion, into which, perhaps, excited feeling 
will sometimes enter ; our own conventions will have 
set them the example.; but to all prophets of evil 
it is sufficient to say, that the Italian people have 
the perfect right to judge of their own institutions, 
and if they find pleasure in it, to wrangle over them. 
They may, perhaps, think that nothing is so good 
as the jar of a constitutional discussion to shake up 
the stagnant elements of a slumbering society. Look- 
ino" from a distance, if we might venture to express 



37 



desires upon a matter which exclusively concerns 
the Italian people themselves, it would be that, Avith 
some changes in the actual boundaries of States, 
representative institutions, securing the largest lib- 
erty, should be founded in each of them, and a cen- 
tral federative government be created to administer 
such powers as the several States should confide 
to it. 

The " United States of Italy " thus formed would 
satisfy the love of unity, so strong in the Italian 
heart, while the State organization would give full 
play to that spirit of local and municipal liberty, 
which, in former days, was so fully developed in the 
Italian Republics. 

The great work of this war would however be 
very imperfectly done, if it stopped with the libera- 
tion of Italy. ' Already in 1848, the unaided Italians 
having taken Peschiera, and driven Austria behind 
the walls of Verona and Mantua, which, for some 
time to come, will probably be her stronghold, she 
offered to treat with France and England as medi- 
ators for the surrender of Lombardy, provided the 
new State would assume a portion of her enormous 
debt. 

If nothing be done now but to rescue Italy, and 
peace be then made with Austria, that peace can be 
only a truce ; for we may expect, in a short time, 



38 



to see her return to her old course, and again, by 
her outrages, disturb the civilization of the world. 

After Italy is secured to freedom, there still re- 
mains Hungary. 

This country, whose constitution goes back almost 
to the date of Magna Charta, and which had pre- 
served its political independence, though exposed to 
every species of encroachment from the Austrian 
archdukes, whom, in an evil hour, it had invited to 
its throne ; this country, so brave and so unfortunate, 
merits all our interest, for it is the home of heroes, 
and of self-sacrificing, honorable men. 

Some five and twenty years ago, several Hunga- 
rian noblemen visited the United States, travelled 
throughout the country, and had the good fortune 
in Boston to form an intimacy with a gentleman 
whose views upon European questions were as en- 
lightened as his general knowledge was varied and 
profound — Mr. Alexander H. Everett. On their re- 
turn to Hungary, one of their number, Farkas Sandor, 
published, in the Magyar tongue, a book pointing out the 
working; of our institutions ; and, in which while ren- 
dering thanks to Mr. Everett for the counsels received, 
he recommended the policy of the Northern States as 
an example for Hungary. The German translation 
of this work was prohibited by Austria, but the Hun- 



39 



garian edition had already gone beyond the reach 
of her poHce. The effect of the excursion to Amer- 
ica was soon apparent. At the next session of the 
Diet, Baron Wesselenyi, Count Bathjany, and others 
of the travehers and their friends, proposed a series 
of measures tending to the aboUtion of those feudal 
privileges which divided the Hungarian people into 
hostile classes, and offered at once to lay down 
their titles and their DOwer for the common scood. 

Austria now took the alarm. She had always pre- 
tended to be the friend of the peasants against the 
nobles, — but when the nobles proposed to give up 
their privileges and emancipate the serfs, she then 
used all her power to oppose them. There was a 
deej:) and wicked policy in this ; it being the aim of 
Austria to keep up such a hostility between classes, 
such a war between capital and labor, that she might 
be able at some time completely to subjugate Hun- 
gary, by calling upon the peasants to cut the throats 
of the land-owners. And this, in the spring of 1846, 
she actually did, in the neighboring province of 
Galicia. 

Shortly after, two men appeared upon the scene. 
Count Stephen Sechenyi and Louis Kossuth. Se- 
chenyi sought the advancement of Hungary through 
material improvements ; Kossuth sought it through 
the education of the people, and by awakening in 
the • minds of the more fortunate classes of society 



40 



a sense of their duties. By securing to the peas- 
ants the right of voting for a delegate to repre- 
sent their villages at the general election, — thus 
bringing home to them the practice of free insti- 
tutions, without, however, creating such a mass of 
new voters as would suddenly disturb the general 
result, — by settling the eternal question of capital 
and labor, and making the holders of each clearly 
understand that their real interests are reciprocal; 
by these and kindred measures — which pre23ared 
the way for that larger liberty secured to all classes 
during the constitutional ministry of Kossuth — that 
eminent orator and tribune showed himself in Hun- 
gary to be a great, practical, conservative statesman. 

The Emperor of Austria having called in foreign 
troops to put down the legal government of Hun- 
gary, and having neglected to take the oath of 
allegiance to her Constitution, which the compact 
between the Hungarian nation and the Dukes of 
Austria made the indispensable preliminary to any 
act of sovereignty on., his part, the Diet, in the 
name of the people of Hungary, on the aimiversary 
of the battle of Lexington, 1849, declared that all 
connection between them and the house of Austria 
was dissolved. 

The noble struggle made by the Hungarian peo- 
ple is still fresh in your memories. The forces of 
despotism were too strong, and their country fell. 



41 



Had any other State recognized their independence, 
it would have enabled them to contract a loan, and 
to purchase the arms necessary for the contest. Our 
own Congress was unable to contract any loan un- 
til our independence had been recognized in Europe. 
To the eternal honor of Mr. Clayton, then Secretary 
of State, a commissioner was despatched with full 
powers to enter into negotiations with the new gov- 
ernment; but he, alas! arrived too late. 

England looked calmly on while a government 
similar to her own was destroyed by foreign arms. 
Had she, in the summer of 1849, opened relations 
with the constitutional government of Hungary, 
which she could have done without shaking any 
existing right ; without even giving any just cause of 
disturbance to " those finical personages who," in the 
words of an English peer, himself a negotiator, "have 
brought a sort of ridicule upon the name of diplo- 
macy ; " had she then taken her stand upon the 
Pragmatic Sanction of 1723, and upon the corona- 
tion oath of the last king — both which documents, 
duly filed away in red tape at the foreign office, 
make part of the public law of Europe, and by 
both which the Austrian sovereigns recognize the 
political independence of Hungary — had she done 
this, she might have spared herself all the sacri- 
fices of her war in the Crimea, and all the embar- 
rassments of the present contest. 



42 



Then there might have been at the present mo- 
ment a great Constitutional State, on the banks of 
the Danube, having municipal institutions which se- 
cured local rights, and a population accustomed to 
constitutional forms, and to liberty founded on law. 
Here would have been a nucleus round which the 
different provinces of Turkey might have clustered, 
as they dropped away from her corrupt body ; and 
Hungary, Transylvania, Valachia, Moldavia, Servia, 
Bosnia, and Bulgaria have formed the "United States 
of the Danube," — a grateful and efficient ally for 
England. But the blind admiration for Austria on 
the part of the English aristocracy, strengthened by 
the labors of Metternich, then in London, would not 
permit this recognition, 

" Of all the subjects which can come before the 
people at large," says Lord Brougham, in one of 
his political essays, "the foreign policy of the State 
is the one on which they the least deserve to be 
consulted. Their interests are most materially affected 
by it, no doubt, for on it depends the great ques- 
tion of peace or war. But the bearing upon their 
interests of any particular operation is far from being 
immediate, and a measure may be most necessary 
for securing the peace, even the independence of 
the nation, and yet its connexion with these great 
objects be far too remote for the popular eye to 
reach it." ''' 

* This was written in 1843. See Brougham's Works, VIII., 93. 



43 

The events of the year 1849 in England, offer 
a singular commentary upon this dogma of Lord 
Brougham. Then the people saw clearly the inter- 
est of England; the ruling classes did not. The 
people flooded the House of Commons with petitions 
for the recognition of Hungarian Independence ; the 
aristocracy remained idle. h. few like Lord Lynd- 
hurst, the Marquis of Northampton, and the lamented 
Earl Fitzwilliam were true to themselves, and acted 
like enlightened English noblemen, but the greater 
part stood in cold indifference to Hungary, or joined 
the sharers in Metternich's Eaton-Square dinners 
in looking with delight at the triumph of her enemy 

And what is this Austrian empire, in sympathy 
for which the ruling classes of England forget the 
interests of their country and the interests of hu- 
manity? An agglomeration of States, differing in 
nationality, language and religion, brought together 
by fraud and violence, and held by brute force, in 
subjection to a government the most infamous in 
history. 

Bohemia, the land of John Huss and Jerome of 
Prague, was annexed after a series of atrocities which 
make the Spanish Inquisition appear respectable in 
our eyes. Three million inhabitants were reduced 
to seven hundred and eighty thousand, and of thirty 
thousand seven hundred villages, only six thousand 
were left standing. 



44 



Excepting the Tyrol, the same atrocities, though 
in less degree, have been practised in every one of 
the different States; — the forces drawn from all being 
used against any one which showed a spark of lib- 
erty. As a general rule, the soldiers of each State 
have been sent to distant provinces, of the language 
of which they were ignorant, and where there was 
little probability that any relations would spring up 
to weaken the blind submission imposed on them by 
military servitude. Sometimes, as in the recent bat- 
tles in Italy, the young soldiers, torn by her con- 
scription from the soil, have been placed by Austria 
in the front rank, and fired upon from behind, if 
they shrank from slaying their friends and deliverers. 

The government of this empire has, when in dan- 
ger, constantly promised reforms in the provinces, and 
as steadily opposed reforms when the danger was 
passed. Its permanent policy has been to keep up a 
state of endless hostility between classes; to rule 
by dividing, by making appeals to the most anar- 
chical passions, by exciting to plunder, and even, as 
in Galicia, to assassination. 

This government is not an aristocracy of virtue, of 
talent, of birth nor of wealth, but of soldiers and 
bureaucrats; whose practice on many occasions has 
been the development of the principles of the most 
exaggerated communism. Property has not been 
respected by them any more than liberty ; — when- 



45 



ever the treasury was empty, it has had no rights 
sacred in their eyes. 

The Austrian government has not scrupled, over 
and over again, to repudiate a large portion of its 
national debt, to cut down to one-half their nominal 
value its treasury notes, and to collect forced loans. 
All Europe would have rung with indignation had 
any of these deeds been done by a liberal government. 
The culminating outrage, however, of Austria upon 
the rights of property was perpetrated in 1852. when 
the emperor, proclaiming himself the guardian of all 
minor orphans, dispossessed the rightful guardians 
and trustees, seized upon four hundred and seventy 
million dollars — the heritage of the fatherless — and 
gave in exchange his own promises to pay. 

The personal violence committed, even in the old 
German provinces, would seem almost incredible to 
one who had not himself witnessed it. The printed 
law prohibits the flogging of women. The governor 
of one of the provinces, with whom I happened to 
be well acquainted, pointed out to me this law, which 
he had shown a few days before to an English noble- 
man who admired Austria. " Here," said the governor, 
showing me the law, " is the text, and here," handing 
me reports from the police, describing the flogging of 
two women that very morning, " here is the sermon." 

One of the greatest sticklers for existing States, 
and upholders of the actual balance of power. Lord 



46 



Brougham, speaking of the partition of Poland, has 
said, " It would not be easy to see any danger arising 
to the North American Union from that partition in 
1793-4, or the Holy Alliance in 1816 and 1820; and 
yet it is certain that the Americans had a right to 
complain of such acts being permitted, because the 
impunity of the wrong-doers gave a blow to the polit- 
ical morality of all nations, and lowered the tone of 
public principle. The United States were interested 
like all other countries, in seeing that the principle of 
National Independence was held sacred, that none 
could conspire against it with impunity." * 

If this be true, then certainly we have a right to 
protest against the conduct of Austria, which is a 
prolonged violation of the principles of national in- 
dependence, and of political and private morality ; 
and since it is now clear that it is only by this conduct 
that she lives and moves and has her being — that her 
existence hangs upon injustice and outrage — then, 
following up the reasoning of our statesman, so con- 
servative on questions of foreign policy, we have a 
right to protest against the very existence of the 
Austrian empire. 

Civilization and humanity demand that this wretched 
machine of cruelty should be broken up ; that this 
opprobrium of the nineteenth century and of the 



* Essay on General Principles of Foreign Policy. Brougham's Works. 
VIII., 7C. 



47 



human race should be resolved into its elements — and 
the so-called emperor, with the German provinces, 
take his place, an humble archduke, in the German 
Confederation. 

Then might Galicia and Bohemia resume their 
position with the Slavonic family ; then would Hun- 
gary become again free ; and then Germany, no 
longer having Austria to crush her, as in 1850, with 
the forces of States foreign to her, might awaken to 
a new life, and found a government in which liberty 
and order should be secured by making the German 
people interested in their maintenance ; a govern- 
ment in which her men of science should take their 
true position, which should not condemn to death 
her poets, nor cause her historians to pine in dun- 
geons '■' — which should not force her Humboldts to 
vote with the opposition, nor drive her Bunsens into 
political exile. Then might there be peace, and not 
merely a truce in Europe ; and the beneficent plans 
of Turgot for reducing standing armies be carried out. 

But the great obstacle to this happy consummation 
is the policy which the ruling classes in England im- 
pose upon her government. The crimes of Austria 
may be traced directly home to England, as without 
the moral support of that power she could not stand 
a twelvemonth. The traditions of the foreign office, 

* As was the case in 1850 with the poet Kinkel, and with the Professor of 
History in the Heidelliei-g University, Gervinns. 



48 



and of the governing classes, based on the events of 
a hundred and fifty years ago, point to the house of 
Austria as the necessary ally of England, Scarce one 
of the conditions which then led to that alliance 
exists now. Thus it is ever with European policy. 
Men of genius conceive a system appropriate for a 
given series of facts ; the facts change, but formalists, 
unable to appreciate the motive of the system, move on 
in the old track to their own perdition. 

Knowing how completely her existence depended 
upon the favor of England, Austria has used all her 
wiles to retain it. Weak young Englishmen of family, 
attracted to Vienna by its cheap and facile vices, 
have been caressed and flattered. On the arrival of 
Englishmen of any political importance, immediate 
notice has been given by the police, and the hint con- 
veyed to certain adherents of the crown to treat them 
with hospitality, and to twine Austrian corkscrews 
round their hearts. 

She has also used her money successfully with a 
portion of the European press. Hence the blatant 
articles we have read upon a march to Paris. At- 
tempts have even been made in this country, but, to 
the honor of the American press, no editor has been 
found willing to soil his hands with the money stolen 
from the orphans of Vienna. 

On the great questions of the day the English 
people are perfectly sound, but the foreign policy of 



49 



England is directed by men wlio care but little for 
the popular sentiment; who decide questions neither 
by rules of natural right, nor by the dictates of a flxr- 
seeing statesmanship ; and who, be they Tories or 
Whigs, have a devotion to Austria so blind and so 
infatuated, that it can only be disturbed by the fear 
of losing their places, or the fear of bringing upon 
England a great calamity. 

And here begin our duties and our responsibilities. 
In whatever contest ensues, our sympathies should be 
with those who strive for their natural rights ; with 
those who strive to imitate us in what we have done 
of good ; and to them we owe all the aid we can 
give, without directly plunging into the contest. 

No English ministry would rashly enter into a war, 
which promised to be long and complicated, without 
assuring and strengthening its friendly relations with 
the United States. This may now be regarded as a 
rule of English polity. Let us make the English 
government clearly understand that in no case, and 
in no form, can it have aid from us, in any measure 
tending to uphold the house of Austria. More, let 
us say to that government, that in such a course, she 
shall have, at all times — and in every manner, short 
of actual war, by which we can reach her — our de- 
termined hostility. 

Let us do for the old world what the old world did 

7 



50 

for us in our struggle for Independence. Let us, in 
favor of the right, interpose another " Armed Neu- 
trality " — a neutrality armed, not with the cannon of 
Catharine, but with the printing press and the elec- 
tric light of truth. And the mighty public opinion 
thus created, shall come to aid the English people in 
keeping their rulers in the path of duty, of justice, 
and of humanity. 

But our responsibilities do not stop here. We owe 
it to those who look to us for a model, lue owe it to 
ourselves, to give them an example of good govern- 
ment ; of a government which at all times and in 
all places shall be true to the memories and to the prin- 
ciples of the day we celebrate; of a government 
free from corruption ; and so well balanced as never 
to permit the encroachment of any one of the three 
great branches of power upon the legitimate field 
of another. 

We have already seen that, even a century ago in 
France, the idea of civil liberty implied an independ- 
ent, but rigidly responsible judiciary, and a complete 
separation of the legislative, executive and judicial 
functions. 

It was an old rule of the Parliament of Paris that 
no member of that court should go to the Louvre, or 
frequent the houses of princes ; and in England, with- 
out there being, as I believe, any positive rule, custom 



51 



requires that the puisne judges shall never go to the 
Court of the Sovereign. This provision is one of 
many to keep the judiciary above even the suspicion 
of making itself an instrument for despotism in the 
hands of the executive. 

In France, where the theory of institutions is more 
closely studied than in England, ample provision has 
been also made to prevent any usurpation by the 
judiciary of the functions of the legislature. 

One of the most ingenious and profound of modern 
authors — Jules Simon — speaking of the progress in 
the development of judicial institutions, even in coun- 
tries where but little progress has been made in other 
things, says: "If placed before judges a thousand 
miles from home, and called on to plead a cause, I 
know that if my cause be just, and my judges be 
honest, I shall win it; and this because the great 
principles which regulate the conduct of judges are 
everywhere the same.'"'' 

Of these great principles, one of the most im- 
portant is that which confines the judge strictly to 
the case and point before him, which does not per- 
mit him to wander from that, and which forbids 
him, under any pretext, to make of the judicial bench 
a tripod or a stump. 

* Le Devoir, par Jules Simon. Simon, like Arago, gave up lucrative 
places under the French government, rather than swear allegiance to a 
usurper. He has just been nominated to the chair in the Institute, made 
vacant by the death of de Tocqueville. 



52 



" An opinion," said Chief Justice Vaughan, " given 
in court, if not necessary to the judgment given of 
record, is no judicial opinion ; "* and Chief Justice 
Willes says, "great mischiefs must arise from judges 
giving such opinions."-!- 

The great legal minds of France have spoken with 
even more force. " The judge," say they, " is neces- 
sarily confined strictly to the point legally brought 
before him. If he permit himself, even with good 
intentions, to wander from this — to express from the 
bench opinions upon other matters — opinions which 
it is true would have no judicial value, but which 
might have an effect upon timid and ignorant minds 
— he unfits himself for the office of a judge. He throws 
away the impartiality which he should have when a 
point, similar to that which he has discoursed upon, 
comes lawfully before him ; and he encroaches upon 
the first branch of the sovereign power — the legis- 
lative — all which is inadmissible in a well-organized 
society."^ 

* Bole V. Hortnn, Vaurrhan's R. 382. " An extra-judicial opinion given 
in or out of eourt is no more than the prolatum or saying of him who gives 
it, nor can be taicen as his opinion, unless everything spoken at pleasure must 
pass as the speaker's opinion." — Ibid. 

I Willes, (j(}6. See also Ram, On Legal Judgment, 22. 

X See the debates upon the adoption of the Code Napoleon for a full dis- 
cussion of this interesting subject; also Berryat de Saint-Prix, Cows de Pro- 
cedure Civile ; and Meyer, Origine et Progres des Institutions Judiciaires en 
Europe. This last authority, speaking of the courts of civilized states, says 
" Penetrated with the truth that courts are established in order to bring dif- 



53 



In no country has the judiciary been more con- 
stantly respected than in our own. It has deserved 
respect, for it has respected itself. The decisions of 
Marshall, of Story, and of Curtis have been adopted as 
law, in the courts of other countries. The severe 
criticisms of Jefferson upon the Supreme Court of the 
United States have not generally been concurred in 
by the intelligent mind of the country. He charged 
that court with arrogance, and with having both the 
power and the will to overturn the constitutional 
liberties of the country.'^ Upon no point was the 

ferences to au end ; that their authority is based only on the requisition of 
parties who implore their aid ; that, In one word, judges are made for 
pleaders, and not pleaders for judges ; the legislator has laid down the prin- 
ciple that the judge can give no decision or opinion except upon the requisi- 
tion of one of the parties to a suit, and in the limits fixed by that requisition. 
The judge is free to grant or to deny what is asked ; to ask for further in- 
formation without which he feels unable to decide ; to allow a part only of 
what is asked ; but he cannot exceed the demand made, neither in quantity 
nor in quality. . . . The judicial power is by its very nature passive. 
He who holds in his hands the balance of justice cannot lean to one side 
without causing it to incline. The judge who agitates, under whatever 
motive or pretext, cannot be impartial." — Meyer; IV., 527 et seq. 

* Jefferson says, in 1820: "The judiciary of the United States is the 
subtle corps of sappers and miners constantly working underground to 
undermine the foundations of our confederated fabric. They are construing 
our Constitution from a co-ordination of a general and special government 
to a general and supreme one alone. This will lay all things at their feet. 
. . Having found, from experience, that impeachment is an impractica- 
ble thing — a mere scarecrow — they consider themselves secure for life ; 
they skulk from responsibility to public opinion, the only remaining hold on 
them. An opinion is huddled up in conclave, perhaps by a majority of one, 
delivered as if unanimous, and with the silent acquiescence of lazy or timid 
associates, by a crafty chief judge, who sophisticates the law to his mind by 
the turn of his own reasoning." — Writings of Jefferson, published by order of 
Congress, VH., 192. See also pp. 199, 216, 2.56, 278, 29.3, 321, 403. 



54 



great father of American democracy more earnest 
than upon this ; and no opinion of his brought upon 
him more severe attacks from his poUtical opponents. 
Hamilton, in earlier days, and more recently the 
learned Justice Story, insisted on the other hand, 
that it would be difficult and almost impossible for 
the Supreme Court to go astray — that the cases upon 
which it could lawfully act were strictly limited,"'' 
and Story declared that, should it ever exceed its 
powers or make a wrong decision, the enlightened 
public opinion of the country, closely watching it, 
would recall it to a sense of duty. 

A recent scene in the Supreme Court of the 
United States has at length justified the forebodings 

* Hamilton's opinions upon the limited power of the Supreme Court as 
laid down in the Federalist are further developed in the 3d and 4th vols, of 
the History of the Republic by his son, John C. Hamilton. Story, in his 
Commentaries on the Constitution^ §1777, 2d edition, says : " The functions of 
the judges of the courts of the United States are strictly and exclusively 
judicial. They cannot, therefore, be called upon to advise the president in 
any executive measures, or to give extra-judicial interpretations of law." 

Some confusion exists in the popular mind from the often repeated asser- 
tion that it is the province of the Supreme Court to decide all constitutional 
questions. Story says : " The court can take cognizance of them only in 
a suit regularly brought before it, in which the point arises, and is essential to 
the rights of one of the parties." Precisely as the humblest Justice of the 
Peace would do. The debates in the Federal Convention show the exact 
meaning attached to the words of the Constitution, extending the judicial 
power of the United States to " all cases arising under the constitution, laws, 
and treaties of the United States." Mr. Madison feared that this might be 
interpreted to mean questions, but it was understood that the power given 
was " limited to cases of a judicial nature." — See Madison's debates, Elliot 
v., 483 ; also Curtis, who ably discusses this point, Commentaries on the 
Jurisfliction of U. S. Courts, T., 95. 



of Jefferson, and has furnished at the same time a 
serious warning to all who prefer a government based 
upon law, to either despotism or anarchy. 

The case of Dred Scott was the occasion taken 
by certain judges of the Supreme Court, to speak 
from the bench on matters not legally before them'^" 
— on matters which they had no right in their ju- 
dicial capacity to discourse upon — which, as judges, 
they could not touch without encroaching upon the 
functions of the Legislature, nor as individuals with- 
out prostituting the dignity of their office ; convert- 
ing the Temple of Justice into another Tammany 
Hall, and the Supreme Bench into a caucus-platform. 
And one of these harangues, that of Mr. Taney, 
was but a short time after seized upon by the Chief 
Executive Magistrate of the country, treated by him 
as a decision, and made the justification of a par- 
ticular line of policy ; — a policy tending to make 
labor dishonorable in the Territories of the Republic.*]* 



* " Many things were said by the court which are of no authority. 
Nothing which has been saiil by them, which has not a direct bearing on the 
jurisdiction of the court, against which they decided, can be considered as 
authority. / shall certainly not regard it an such. The ques ion of juris- 
diction being before the court was decided by them authoritatively, but 
nothing beyond that question." — Justice M'Lean, in Dred Scott v. Sandford. 
Howard's Reports, XIX. 549. 

f I know of no eminent lawyer in the country who has sustained the dec- 
larations of the Chief Justice in this case. It has been asserted that the 
former Attorney-General of the United States, Mr. Caleb Cushing, whose 
profound learning and legal sagacity all admit, upholds them ; but he is re- 



56 



To the honor of the judiciary, two judges, and 
they the most learned upon the hench, were found 
faithful among the fliithless. Mr. Justice McLean, after 

ported to have said, on the 27th February, 1858, in the Legislature of Mas- 
sachusetts : " There are parts of the opinion of the court, which in his 
o[)inioii could not be sustained," and then to have commented on those parts 
" from which he dissented." (See Legislative debates in Boston Daili) Adver- 
tiser, 1st March, 1858.) On a subsequent day, Mr. Gushing being present, 
the following able analysis of the case was made by a member of less experi- 
ence but of equal legal acumen, Mr. John A. Andrew, and the correctnej's 
of this analysis has never, that I am av?are, been disproved by Mr. Gushing. 
Mr. Andrew said : 

'' On (he question of the possibility of citizensliip to one of Dred Scott's color, extrac- 
tion and origin, three justices, viz. Taney, Wayne and Daniel, held the negative. Nelson 
and Campbell passed over the plea by which the question was raised. Grier agreed with 
Nelson. Catron said tlie question was not open. McLean agreed with Catron, but 
thought the plea bad. Curtis agreed that the question was open, but attacked the plea, 
met its averments, and decided that a free-born colored person, native to any .Slate, is 
a citizen thereof, by birth, and is therefore a citizen of the Union, and entitled to sue in 
the Federal Courts. But three judges of the Supreme Court have, as yet, judicially denied 
the capacity of citizenship to such as Dred Scott and family. 

" Had a majority of the court directly sustained the plea in abatement, and denied the 
jurisdiction of the Circuit Court appealed from, then all else they could have said and 
done would have been done and said in a cause not theirs to try and not theirs to discuss. 
In the absence of such majority, one step more was to be taken. And the next step reveals 
an agreement of si.Y of the Justices, on a point decisive of the cause, and putting an end to 
all the functions of the court. 

•' It is thi,s. Scott was first carred to Kock Island, in the State of Illinois, where he re- 
mained about two years, before going with his master to Fort Snelling, in the Territory of 
Wisconsin. His claim to freedom was rested on the alleged etTect of his translation from 
a slave State, and again into a free Territory. If, by his removal to Illinois, he became 
emancipated from his master, the subsequent continuance of his pilgrimage into the Louis- 
iana purchase could not add to his freedom, nor alter the fact. If, by reason of any want 
or intirmity in the laws of Illinois, or of conformity on his part to their behests, Dred 
Scott remained a slave while he remained in that State, then — for the sake of learning 
the effect on hiin of liis territorial residence beyond the Mississippi, and of his marriage 
and other proceedings there ; and the effect of the i-ojournment and marriage of Harriet, 
in the same Territory, upon herself and her children — it might become needful to advance 
one other step into the investigation of the law; to inspect the Missouri Compromise, ban- 
ishing slavery to the south of the line of 36° 30 in the Louisiana purchase. 

" But no exigency of the cause ever demanded or justified that advance ; for six of the 
Justices, including the Chief Justice himself, decided that the status of the plaintifl', as free 
or slave, was dependent, not upon the laws of the State into which he had been, but of 
the State of Missouri, in which lie was at the commencement of the suit. The Chief Justice 
asserted that ' it is now (irmly settled by the decisions of the highest court in the State, 
that Scott and his family, on their return were not free, but were, by the laws of Mi.«- 
sonri, the property of the defendant.' This was the burden of the opinion of Nelson, 
wlio declaies ' tjie question is one solely depending upon the law of jVfissonri, and that 



57 



showing the dangerous novelty of the conduct of the 
court; its violation of precedent, of written law, and 
of natural right ; and after declaring that the mere 
" sayings " of the court would not be regarded by 
him as authority, expressed his regret that its declara- 
tion of a year before (in Pease v. Peck, IS Howard) 
did not seem to be fresh in the minds of some of 
his brethren : " that it could not yield its convictions 

the federal Court sitting in the State, and trying the case before us. was bound to follow 
it.' It received the emphatic endorsement of Wayne, whose general concurrence was 
with the Chief Justice. Grier concurred in set terms with Kelson on all 'the questions 
discussed by him.' Campbell says, 'The claim of the plaintiff to freedom depends upon 
the effect to be given to his absence from Missouri, in company with his master in Illinois 
and Minnesota, and this effect is to be ascertained by reference to the laivs of Missouri.'' Five 
of the Justices then (if no more of them) regarded the law of Missouri as decisive of the 
plaintiff's rights. 

"The Chief Justice and Justices Wayne and Nelson and Grier plainly hold that, on this 
point, the Court of the United States were bound to follow the decision of the Court of 
Missouri, which had already pai;sed upon the question. And if Campbell did not intend 
to be bound by the Missouri Court, we are at a loss to understand what he does mean ; 
since, asking ' what is the law of Missouri in such a case ? ' and, after citing Scott v. Em- 
erson in the 15th of the Missouri Reports and various anthorities of several States, he con- 
cludes that ' questions of status are closely connected with questions arising out of the 
social and political organization of the State where they originate, and each sovereign 
power inust determine thetn within its own territories.^ He held conclusively and distinctly, 
and so also did Mr. Justice Catron, in common with all the judges, besides McLean and 
Curtis, — on their own investigation and reasoning, — that the law of Missouri (to be 
ascertained either by themselves, or by exploring the declared opinion of the Courts,) 
must lule the cause. And they all affirm that, irrespective of the laiv of Illinois and of the 
territory., Scott was a slave by tlie law of Missouri, on his return within the confines of 
its jurisdiction. 

" If the law of Illinois could have had no possible effect to secure freedom to Scott, 
when again remitted to Missouri, it follows that neither could the laws of the territory 
have availed him. The majority of the court had no occasion, therefore, to follow them 
into the territory, in order to look into the condition of Harriet and the children ; because 
Dred, as a slave, could have no wife nor child, known to the law or recognized by the 
Court. But if any such occasion had existed, the same answer, — of the effect of the Mis- 
souri law, — was sufficient to control the cause. 

" Here, then, we have a man, found by three of the Court, to be a person impossible to 
be a citizen, by reason of ancestral disabilities; by the same three, and four more of them, 
to have been a slave, by the law of his domicil at the inception of the suit. And yet, on 
the strength of observations and reflections indulged by a majority of these gentlemen, 
after their judicial functions had ceased for want of a competent plaintiff in the suit — for 
want of a man competent to the ownership of his own body, (on one side of their record,) 
— it is claimed by the President of the United States, that slavery ^exists in Kansas under 
the Constitution of the United States,'' and that this point has been declared by the highest tribu- 
nal known to our laws.'' " 



58 



where, after a long course of consistent decisions, 
some new light suddenly springs uj), or an excited 
public opinion has elicited new doctrines subversive of 
former safe precedent." '■'■ 

Mr. Justice Curtis declared that, without violating 
dui^, he could not follow Mr. Taney in discussing 
matters not before the court ; and, true to judicial 
principles, said, " he did not hold the opinion of that 
court, or any court binding, when expressed on a 
question not legitimately before it." He did not 
fail, however, thoroughly to examine the question 
before the court, and showed that upon that, the 
opinion of Mr, Chief Justice Taney was as illegal as 
was the demagogical harangue of Mr. Taney on 
matters not before the court.f 

The Chief Justice had declared that, " every per- 
son, and every class and description of persons, who 
were at the time of the adoption of the Constitution 
recognized as citizens in the several States, became 

* Howard XTX., 563. 

fin the trial of Woodfall, the printer of Junius, the aberrations of the 
Chief Justice — less flagrant by far than those in the Dred Scott case — 
were, it will be remembered, the object of discussion in the House of Lords, 
where Lord Chatham, on the 11th of December, 1770, said: " The court 
are so confined to the record that they cannot take notice of anything that 
does not appear on the face of it ; in the legal phrase they cannot travel out 
of the record. The noble judge did travel out of the record; and I affirm 
that his discourse was irregular, extra-judicial, and unprecedented. His 
apparent motive for doing what he knew to be wrong, was that he might have 
an opportunity of telling the public extra-judicially " certain things, which 
Chatham proceeds to develop. — Woodfall's Junins, L. 29. 



59 



also citizens of this new political body." ='= He as- 
serted, however, that the free descendants of imported 
Africans " were at that time (viz., in 1787) considered 
as a subordinate and inferior class of beings," having 
no natural rights jf that " they had for more than a 
century before been regarded as beings ... so far 
inferior that they had no rights which the white 
man was bound to respect ; "J that " this was an 
axiom in morals as well as in politics ; " — from which 
premises he declared that they were not then citi- 
zens in the States (passing over in utter silence the 
statutes of several States prior to 1787, which made 
them citizens), and could not, therefore, be then, nor 
afterwards, citizens of the United States.§ 

Well did Mr. Justice Curtis overthrow this mon- 
strous assertion, by pointing to the laws of five States, 
among them North Carolina, which, in 1787, gave to 

* Howard XIX., 406. 

t " No rights or privileges but such as those wlio held the power and the 
government might grant them." — C. J. Taney, in Howard XIX., 405. 

t Howard XIX., 407. 

§ This paragraph is the careful condensation of twenty-four pages of 
casuistry in the official report of the opinion of the court. — Ibid, 403-427. 
The marginal summary of the official reporter stands thus : " When the 
Constitution was adopted, they [i. e., freemen of the African race, whose 
ancestors were brought to this country and sold] were not regarded in any 
of the States as members of the community which constituted the State, and 
were not numbered among its ' people or citizens ' ; consequently the special 
rights and immunities guaranteed to citizens do not apply to them. And, 
not being 'citizens' within the meaning of the Constitution, they are not 
entitled to sue in that character in a court of the United States." — Ibid, 393. 



r>o 



free colored men the full rights of citizens, enforcing 
this by the decision of Judge Gaston, of North Caro- 
lina. He also cited the Articles of Confederation of 
1778, the fourth of which declared the "free in- 
habitants of each of these States entitled to all the 
privileges and immunities of free citizens in the 
several States ; " he showed by the discussions in Con- 
gress at the time, that the question was then thoroughly 
understood ; and pointed out the efforts of South 
Carolina to so amend this article as to restrict citi- 
zenship to whites, efforts in which only one of the 
thirteen States joined her.* Mr. Justice Curtis might 
also have cited the statute of Virginia of 1783, which 
declares that all freemen are citizens, and wdiich re- 
peals the law of 1779, that limited citizenship to 
whites. 

Carrying the opinion of the Chief Justice to its 
logical result, Mr. Justice Curtis showed that it im- 
plied the power to change our Republic to " an oli- 
garchy, in whose hands would be concentrated the 
entire power of the Federal Government." 

Ao;ainst doctrines and conduct so destructive to 
our free institutions, it behoves us all, on this day, 
solemnly to protest. On this day again, it behoves 
us to remember, that an injury done to the humblest 
among us, whatever his color, whatever the country 
of his birth, is an injury done to us all. 

* Howard XIX., 572-5. 



61 



All who believe in natural rights^ and all who 
uphold existing things, are here called upon to act. 
In presence of usurpation, it becomes most especially 
the duty of all conservative men of the country to 
come forward. 

I honor the conservative who stands the guardian 
of order, of existing rights, and of instituted liberty, 
and who gracefully yields at last to the progress of 
an advancing civilization : 

" Who serves the right, and yields to right alone." 

But there are some Avho, calling themselves conser- 
vatives, conserve nothing, and who yield, not to the 
advances of civilization, but to the encroachments of 
barbarism ; w^hose whole conservatism is constant con- 
cession ; who tell us they are " as much opposed to 
barbarism as any one," but they wouldn't meet it on 
the field of politics, — " as much opposed to crime 
as any one," but they wouldn't hear a warning voice 
raised against it from the pulpit; — their politics are 
too pure, their Sunday slumbers too precious, to be 
disturbed by any allusions to such exciting matters 
as the advances of crime. And so they go on, con- 
ceding everything, — not to civilization, but to bar- 
barism, — not to liberty, but to liberticide — backing- 
down before every presumptuous aggression — down — 
and down still — until they fall among the lost ones 



62 

whom Dante has described/'^ From them there is 
nothing to expect. 

"Non ragionam di lor, ma guarda e passa." 

We have, however, among us some real conserva- 
tives, and many inteUigent and worthy men, who 
neglect the privileges, shall I not say the duties, of 
citizenship, and who, either from indifference or from 
a false fastidiousness, abstain from the polls. To 
these men I would, on this occasion, specially appeal. 
You complain that your vote is only that of one, 
and that however great your intelligence, however 
profound your learning, it may all be outweighed 
by the vote of the most simple. Here then is an 
opportunity for effective action ; here is the occasion 
foreseen by the sagacious Story, when he placed the 
security against a trespass by the Supreme Court 
upon the known principles of law, in the intelli- 
gence, the integrity, the learning and the manliness 
of the country, which would keep watch upon its 
proceedings. 

Here you may exercise your knowledge, and the 



* " Master, 

What wretched souls are these in anguish drowned ? " 

To which he answered, " This award severe 
On those unhappy spirits is bestowed. 

Of whom nor infamy nor good was known, 
Joined with that wicked crew which unto God 
Nor false nor faithful, served themselves alone." 

Inferno: Canto III., Parsons's Trans. 



63 



influence which it may carry with it. Bring that 
knowledge and influence to bear upon the judges 
who have acquiesced in that deplorable prostitution 
of their office ; aid them to see the error of their 
ways; point out to them the fountains of that law 
of which they are the ministers ; draw them gently 
back to an appreciation of those elementary principles 
of jurisprudence, and of judicial action, which seem 
to have passed from their memories; furnish the 
Chief Justice with a copy of the decisions of North 
Carolina and of the statutes of Virginia f persuade 
him to read the history of his country ; tell them all, 
not in anger but in sorrow, of the disastrous conse- 
quences of their example ; show to them that what- 
ever factitious popularity may follow their conduct, 
the wise and the good are not with them, and that — 
though they may have a Senate at their heels ready 
to print and circulate their opinions through the coun- 
try at the public expense — the voices of all the true 
and enlightened will condemn them in the present. 



* Particularly the 11th volume of " Hening's Virginia Statutes," where 
on p. 322 maybe found the law of October, 1783, which repeals that of 
1779, limiting citizenship to whites, and which enacts, "That all free per- 
sons, born within the territory of this Commonwealth shall be deemed citi- 
zcn,t of this Commonwealth." To this might be joined the opinion of the 
learned Judge Gaston, of North Carolina, (4 Dev. and Bat. 20), cited by 
Justice Curtis (19 Howard, .573) : " All free persons born within the State 
are born citizens of the State. It is a matter of universal notoriety, that 
under the Constitution of North Carolina, free persons, without regard to 
color, claimed and exercised the franchise." 



64 



and the Muse of History chronicle their names in the 
bhick catalogue of unworthy judges. 

And if with all this you find them deaf to your 
remonstrances, unwilling to purify the ermine which, 
confided to them, has been draggled and soiled, if, 
unconscious of 

" their foul disfigurement, 

They boast themselves more comely than before," 

you will at least have the satisfaction of knowing that 
you have done something to serve your country. 

But this conduct of the court, though at first it 
may most shock the student of history, and the jurist, 
conversant with those principles which through the 
long struggle between arbitrary power and right have 
been evolved as the guaranties of justice between 
man and man, this usurpation on the part of the ju- 
diciary comes home to every one ; to the rich as 
well as to the poor ; to the powerful as well as to 
the weak ; to the wise as well as to the simple ; 
to the white as well as to the black. 

To-day liberty is attacked ; to-morrow it may be 
property. Let this be calmly acquiesced in, and no 
interest however respectable, no right however sacred, 
is safe. In opposition to the monstrous conduct of 
these judges all of us may cordially unite : in this all 
shades of party may blend ; for no party, however 
strong it may appear, however great the selfish in- 



65 



terests it may suppose to be Mattered, no party can 
long bear up under the opprobrium of a measure 
which tends to undermine our institutions ; which 
destroys the harmonious balance of the power dele- 
gated by the people to different branches of their 
government, and leads logically on to despotism or 
to revolution. 

Let us, therefore, all join our efibrts to restore the 
purity of the judiciary, — to aid it to recover its self- 
respect ; and having done this, let us prove that oui- 
celebration of this day is no mere empty show, by 
honoring the immortal truths of the Declaration, and 
by earnestly endeavoring in the future to act up to 
them. Let us rally around the Constitution of out- 
country, which guarantees trial by jury to all, and 
which, in its own words, was " ordained to establish 
justice, and secure the blessings of liberty ; " let us 
drive far away the corruption in power, and make 
Justice and Liberty the persistent rule of action of 
our government. 

Then shall we offer an acceptable tribute to the 
memory of those who founded our Republic ; then 
shall our country present a cheering example to othei- 
nations struggling with oppression ; then, true to it- 
self, it shall be stationed, 

" I^ikc a lieneficiMit stnr tiir aJl to jraze at, 
So liiuli ;ni(l !Jlo^villL^ tiiat kiiijjdoiiis tar and t'ori-igti, 
Shall li\ it read their destiin.'' 



THE DINNER AT FANEUIL HALL. 



After the Oration, the City Authorities and their 
guests dined in Faneuil Hall. From the official 
account of the ceremonies of the day, are extracted 
the following remarks made at the dinner by a guest 
of the City, Mr. Palfrey, of New Orleans, and by Mr. 
Sumner. 

Mr. Palfrey, having been called upon by the Mayor 
to reply to the sixth regular sentiment, among other 
things, said : 

" It is peculiarly a hard case for a man who has been a 
citizen of the South for fifty years, who is an American 
citizen, and enjoys the protection of the Stars and Stripes, 
to return to his native city and hear such sentiments pro- 
mulgated as I have been obliged to listen to in the Music 
Hall to-day." 

The seventh regular sentiment, given by the Mayor, 
immediately after this, was — 

The Orator of the Day — His eloquent address adds fresh laurels to 
the name of Sumner, already twice distinguished by his father and 
brother on the roll of the orators of Boston. 

Mr. George Sumner, being called upon by the 
Mayor, responded as follows : 



08 



"I am deeply grateful, Mr. Mayor and Fellow-Citizens, for 
the nanuer in which this sentiment has been received, as 
it shows that the memory of my honored father, and the 
name of my absent brother, are fresh in your minds. The 
allusion to my father gratifies not alone my filial feelings, 
but those which I have as a citizen of Boston, glad to see 
honor rendered to every example of integrity, justice and 
patriotism. You have spoken of him as one of the ora- 
tors of Boston. May I be permitted to recall an occasion 
(not the fourth of July) on which, as it seems to me, he 
spoke also for Boston, and with a certain eloquence. 

"In 1812, the dominant interest of our city was strongly 
opposed to a war with England. At that time, a call was 
made for a national loan, and subscription books wei'e 
sent to Boston. These were received in no compliment- 
ary manner. In that street which witnessed the first con- 
flict between British troops and American citizens, it was 
stated that no money would be given in Boston — and, 
moreover, that any one who subscribed to the loan should 
be stigmatized. These menaces had their effect. Days 
rolled on, no money came, and the jeers of the street 
were redoubled. At that moment, my father, then a young 
lawyer, sold some property, got together what money he 
could command, paid it to the agent of the national trea- 
sury, and put his name, solitary and alone, upon the stig- 
matized list. 

" Two days after, the impulsive, warm-hearted, civic hero 
of our Revolution, in whom the spirit of party never rose 
superior to patriotism, the venerable John Adams, came 
from Quincy and put his name also on the list. 

" The subscription of my father was not large — it was 
the young lawyer's mite — but in standing forward when 
the national honor had been attacked, and in doing a 
patriotic act, in presence of menace, there was a civic 
courage, which I may, perhaps, be pardoned for remember- 



69 



iiig with a certain satisfaction. On that occasion, it seeing 
to me that he was the real orator of Boston, speakino; by 
action, not perhaps the dominant or the fasliionable sen- 
timent of the moment, but the sober second-thought of 
this great city ; which is always true to the national honor, 
and true to the principles of the founders of the Republic. 

'• I shall not follow the gentleman who has just preceded 
me in any discussion. This is Faneuil Hall, and this is 
tlie City of Boston. I congratulate him on being where 
every man is free to express his opinions. In so much 
of what I have had the honor to say this day in another 
place, as regards recent events in our own country, I am 
supported l)y Jefferson, by Hamilton, by Story, and by 
the great jurist of Louisiana, Edward Livingston. With 
them I am content to stand or fall. 

'' In every part of Europe, but more especially in France, 
I have remarked, Mr. Mayor, the honor paid to our native 
city. Landing at Boulogne, I found myself passing through 
the rue de Boston ; and in two other cities of France found 
the dear old name upon street corners. This honor is thus 
rendered on account of the example given by Boston in 
her sacrifices for liberty ; and because she has always 
recognized the necessity of basing her liberty firmly upon 
law; and as the guaranty of this, of keeping the legislative, 
executive and judicial functions separated from each other. 

" Permit me, sir, to propose as a sentiment : 

" The City of Boston — The first to make sacrifices for the liberties 
of the whole country ; the firmest in maintaining the Union formed 
to secure the blessings of Liberty to all." 



LIBRARY OF CONGRESS 



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